A Review of Martha Fineman's The Neutered Mother, the Sexual Family
and Other Twentieth Century Tragedies: She Threw Out the Baby with the
Old Feminism

A Review Essay by Eleanor Willemsen and Michael Willemsen

In her provocative keynote address, Martha Fineman presents us with a
challenging proposal for thinking our way out of the "welfare dilemma."
She addresses the social problems that stem from children growing up without
resident fathers. These problems range from troubles in school, increased
aggressive behavior, and precocious sexuality to inadequate nutrition
and medical care. Fineman urges us to redefine the family as a "caregiving
dyad, comprised of a dependent child (or other dependent person) and his
or her principal nurturer, who is most often the mother. This enables
us to focus on our collective responsibility to this revised family, free
from the notion that its needs are the private responsibility of the absent
father. She points out that caregiving and emotional nurturing are "gendered"
activities that are usually assigned to females in our society, thus causing
them to become undervalued. The caregivers of dependents often depend
on resources outside of their own domain in order to provide the secure
and nurturing setting that they and their children need. Fineman proposes
that we should accept a collective responsibility for the derived dependency
of this caregiving dyad instead of assigning it to a biological father
who needs to be "brought back" into the family. We must provide support
for the family as she has redefined it.

Fineman seems to base her suggestions on two interrelated concerns.
First, when we assign responsibility for the nurture of the family to
the father, we make the family's security a private matter which is based
on the sexual bond between a man and woman. Our failure to see this child
support as a public concern allows us to avoid subsidizing it. The result
has been that many single female caregivers and their children are inadequately
supported, by themselves or by society, and the problems of child poverty
result. Children are at risk because their opportunities for nurture and
care come from the sexual relationships that their principal nurturers
may or may not have with their biological fathers. Threats to these sexual
relationships are threats to child nurture. Finally, Fineman argues that,
as a practical matter, forcing biological fathers to take financial responsibility
has little potential to reverse child poverty. Because fathers of children
raised by single mothers are not able to provide the needed resources
to support them, child poverty will continue.

Much of Fineman's paper goes beyond the practicalities of how parents
should nurture children, and instead focuses on the impact that current
welfare policies and reform proposals have on women. While this too merits
discussion, our concern is that the child's best interests will not be
adequately addressed. We will carefully examine points of Fineman's argument
before developing an analysis of this concern. We will look at her criticism
of current feminist jurisprudence, explain her skepticism about the practical
effects of making policy revolve around the father's role as a provider,
and restate her proposal for the circumstances under which fathers should
be assigned enforceable responsibilities for the nurture of their children.

Fineman notes much that is worthy of criticism in current feminist jurisprudence
as it is applied to family law. Feminist scholars focus on equality between
men and women, but the corresponding revisions in family law do not achieve
this equality. The "no fault" family law revisions made in recent years
achieve greater sameness of treatment of men and women. Men and women
have equal access to contact with the child, equal standing to petition
for custody, equal obligation to provide support, and equal responsibility
for ensuring that the child has an opportunity to preserve a relationship
with the other parent. The scrupulous attention to treating the mother
and father the same may appear to be based on the presumption that they
are equally important in children's lives. However, it is instead based
on a concern for equal rights among men and women.

Fineman addresses the results of an equality-based feminist approach
to child nurture issues. First, this new "no fault" law retains traditional
patriarchal notions of the family as a private and provider-based social
sphere based on the sexual relationship between a man and woman who happen
to be parents. Admittedly, under current law, there is a more equal distribution
of responsibility between the mother and father within the traditional
family structure. Second, "no fault" law has done nothing to improve the
welfare of children. In fact, their situation has become worse. Finally,
child nurture continues to be regarded as a private matter, and therefore
remains outside the realm of public responsibility.

Fineman's analysis of the points we have just identified is organized
around her central thesis: "no fault" family law, based on the goal of
treating men and women the same, damages women. This law retains the worst
features of the patriarchal family. Namely, child nurture is a private
matter and those who provide economic support have control. Additionally,
this law assigns women new burdens of economic responsibility. Women retain
the traditional gendered responsibility of child nurture because there
is little recognition in the law for an equal duty of fathers to nurture
their children. Women continue to nurture children, but must now do it
without adequate provision for their derived economic dependency.

Fineman asserts that present laws consider both the mother's and the
father's relationship with their children as equally worthy of protection
by the state. Preservation of this equality is, however, more valuable
than providing nurture for children. Mothering has lost its uniqueness
and goodness in the eyes of society. This is apparent in the failure of
current family law to give any special recognition to child nurture or
to acknowledge those who provide such nurture. Instead, a mother who nurtures
her child outside of a sexual relationship with the child's father is
considered "deviant." To correct such deviance, the woman must add a man,
preferably the child's father, to the family. Such thinking sends the
powerful message that a family must have a man at its center. Children
and their nurturers are not valuable except in the context of a family
that includes a man.

Fineman ends her discussion by proposing change which is based on a
newer feminist approach. This approach seeks equality of value between
men and women instead of merely attempting to treat them alike. She proposes
that society must share the responsibility for nurturing children. We
will then assign the "gendered" responsibility for nurture to mothers,
most of whom are women. As a society, we will accept responsibility for
the derived dependency of the mother-child dyad through minimum levels
of subsidy for every caregiving dyad. Child nurture will no longer be
based upon the sexual relationship that exists between the child's mother
and father. Men who wish to be involved in child nurture and wish to provide
for the nurturer-child dyad will negotiate their way into this arrangement
by contract. There will be no marriage as a legal entity. Instead, marriage
will become a private matter between a man and woman, and child nurture
will become a public matter concerning us all.

We have two fundamental criticisms of Fineman's proposals for redefining
the family and ending legal marriage. First of all, her radical redefinition
of the family does not achieve an appropriate balance among the needs
of the father, mother, child, and society. Second, Fineman's discussion
of how her proposals would work simply ignores what we already know about
the psychological and economic benefits children gain from having two
parents instead of one.

First, consider the issue of balancing rights and needs. While Fineman
may be correct in her assertion that "no fault" divorce has not improved
the situation of children and is unfair to women, this does not mean that
we should abandon fairness as a governing principle. As we see it, the
unfairness of the treatment of women and the inadequacy of economic support
and psychological nurture for children are the result of the lack of consideration
given to children in the development of family law. We propose that when
family arrangements are made under current "no fault" law, all parties
must be required to take the best interests of the child into consideration.
With this requirement, several results will follow. A workable provision
for the nurture and economic support of the child will have to be made,
thus assigning nurture a value. Children will have the right to be nurtured
and to continue any nurturing relationships they have enjoyed and that
the nurturer wants to continue providing. Often, but not necessarily,
both parents will be included as members of nurturing relationships. Other
adults, who are "psychological parents," may be included as well. The
right of children to be nurtured will assign to society the duty of subsidizing
the caregiving dyads when private arrangements fail to do so.

The addition of a best interest test to the resolution of disputes between
divorcing or separating parents will not eliminate the parental rights
of either mother or father. However, it should make parental rights subordinate
to the child's right to be nurtured and to continue nurturing relationships.
The child's right to receive top priority in the balancing of competing
interests arises out of the child's dependency and lesser ability to provide
for his or her own needs. But who is next in line after the child? The
mother? The father? Society, with its duty to support the caregiving unit?
Here, we would accept some elements of Fineman's proposal.

These priorities should not be the subject of fixed legal guidelines,
but instead, should be made the subject of contractual arrangements. Where
a child's mother and father have shared nurturing duties and have maintained
nurturing intimate relationships with their child, equal claims to continuing
these relationships can be acknowledged by the judicial process without
resorting to the "no fault" solution of treating men and women the same.
The child's best interest may be served if he or she remains primarily
dependent on the mother whose derived dependency must then be acknowledged
with an order for the father to sustain the caregiving unit. The best
interest test does not require either of the two extreme solutions discussed
above. It does not involve the "neutered mother" and mindless solution
of "no fault" law and does not require, as Fineman suggests, that a father
be seen as irrelevant and society be seen as a supporter.

Having discussed our first concern that the child's rights must be given
first priority when balancing the needs of mothers, fathers, and society,
we turn now to our second concern regarding Fineman's analysis. Fineman
simply ignores all evidence supporting the proposition that children who
have relationships with their fathers have a better chance of being successful
in the enterprise of growing up than those who lack these relationships.
Children who have positive relationships with their fathers are more likely
to develop a sense of personal control over their lives, show less problem
behavior, achieve success in school, express satisfaction with themselves
and relate well to peers and other adults. These successful developmental
outcomes are not limited to children who have relationships with their
fathers. They are sometimes seen in the children of single mothers and
lesbian couples. Regardless, the fact that a father's involvement is associated
with greater psychological well-being and economic opportunity for their
children requires a policy that encourages the involvement of men in the
upbringing of their children.

In addition to the benefits children gain from involvement with their
fathers on an individual basis, there is a psychological benefit for children
who are a part of a family in which adults have a successful close relationship
with one another. In such families, children develop greater faith in
love and its possibility in their own lives. We also know that many father-child
relationships are of poor quality and can, at times, be destructive. Additionally,
many marriages are destructive in their effects on all parties concerned,
including the children. This is precisely why the analysis of Fineman's
question, "Who is a family?" or the related question "Who can continue
being a family after divorce or separation?" must be approached from the
perspective of the child's best interest.

Instead of assigning fixed rights and duties to the man, woman, and
society in disputes about child nurture, let us begin with the child's
need for nurture. We will most often discover that while both the father
and mother have some relationship with the child, the mother is the chief
provider of nurture and that she, as a result, is less able to provide
autonomously for her and her child's support than she would be if she
were not the principal nurturer. Family law needs to acknowledge the value
to society of the mother's provision of child nurture, and society must
be the safety net for her derived dependency. At the same time, we must
acknowledge the value of the child's continuing relationship with his
or her father and with other persons who may be significant sources of
nurture. Economic arrangements for supporting dependents must reflect
the value to society of child nurture wherever it occurs and in whatever
amount.

We identify four criteria, at variance with Fineman's analysis, that
we believe public policy should meet regarding the nurture of children.
First, policy should not interfere with a child's opportunity to have
permanent, intimate and nurturing relationships with two or more parents
(as in stepparents, significant partners of parents, etc.). While these
relationships often do not develop, we should encourage any opportunity
a child has to develop intimate relationships with both parents. If we
relegate the father's participation to the private contractual sphere
as Fineman proposes, the opportunity for many children to maintain relationships
with their fathers would be curtailed.

The second criterion family policy should meet is to explicitly recognize
the child's right to have family relationships and to be nurtured independently
of the rights of other parties, the mother, father, and society. The third
related criterion is that once the child's rights are identified, these
rights must be balanced with the rights of the father, mother, and society.

The fourth criterion is that family law policy should explicitly recognize
both the special gendered value of the nurturing role which is often,
but not always, taken by the woman and the value of an ongoing, nurturing
and intimate relationship with a second parent. Policy must give men incentives
to maintain relationships with and continue to support their children.
Children and society are ill served when men are written off as unvalued
participants in the family.

We agree with Fineman that the gendered experience of being the primary
nurturer is not recognized and valued properly as reflected by today's
family law. As she eloquently argues, we need to back away from the equality-sameness
quandary we have gotten ourselves into with regard to family law. We need
to address the derived dependency issue and make a collective societal
decision about what we are willing to do to support caregiving dyads.
The current political climate will not support Fineman's proposal for
a societal subsidy of single mother caregiving units. Fathers should be
included along with parent education about childcare and job training
as part of a complete package. An additional aspect of our proposal would
be to enforce all contractual agreements between parents that assign childcare
duties to fathers. If we cannot enlist them, we must enlist society. Some
welfare subsidy is necessary and must be continued. In short, let children
and their needs drive the development of family law.

Eleanor Willemsen is a Professor of Psychology, Santa Clara University.

Mr. Willemsen was a research attorney for the California Supreme Court
for twenty years. He is currently an appellate attorney in Palo Alto,
California.

The views expressed on this site are the author's. The
Markkula Center for Applied Ethics does not advocate particular positions
but seeks to encourage dialogue on the ethical dimensions of current
issues. The Center welcomes comments
and alternative points of view.